A Stitch in Haste

I generally like curmudgeonly Wall Street Journal editorial board member Dorothy Rabinowitz. But she completely drops the ball in her commentary on the controversial random searches of bags by New York City mass transit (WSJ - $, see also OpinionJournal):

Most of those entering the subways these days are, it seems, unperturbed by the prospect of a bag check, and not a few have made clear their approval of such precautions. Indeed, in its latest war on the security search, the NYCLU has entered on decidedly iffy terrain: one close to home, psychologically, for masses of Americans (and not just those who take city trains and buses), all in a good position to weigh the sort of argument which holds that government security methods are a greater threat to them than terrorism.

This is what happens when people forget that "our way of life" is not about unbridled democracy but about individual rights and that government is supposed to do things for us, not to us. The Fourth Amendment is not a suggestion and is not subject to majority vote or bureaucratic veto. If Rabinowitz, Mayor Bloomberg or anyone else wants to argue the law, then fine -- let's argue it.

But it is downright unpatriotic to suggest that those who seek to protect our liberties are downright unpatriotic.

Rabinowitz' thesis is deeply disturbing. Perhaps she will think I'm demented, but when it comes to my privacy I am indeed more afraid of the police than I am of the terrorists (and I live in NYC and I ride the subways). The terrorists will vanish some day -- will the precedent of random suspicionless searches vanish with them?

Meanwhile, so long as there are still terrorists in the world, the NYC program will do nothing, absolutely nothing, to thwart them. The program has a single irrefutable flaw: it is not about making people safe, but about making people feel safe.

And that is not enough to suspend the Fourth Amendment.

More:

Taking affront at government security measures in wartime is, of course, a choice available only to a free people, as is the right to cavil ceaselessly about the alleged erosion of our liberties, the dark night of oppression settling on us daily, as the NYCLU has so conspicuously done these last years -- though not without echoing choruses from its parent organization, the ACLU, and various crank outposts of the libertarian movement.

The curmudgeon doth protest too much. Rabinowitz can thump her chest, roll her eyes and make "tsk, tsk" noises all she wants. Not only is there no clear Supreme Court jurisprudence regarding the kind of search program NYC has implemented, but the case law we do have tends to support those of us who consider the program unconstitutional. Perhaps we'll eventually be proven wrong, but we are certainly not "caviling." The NYCLU's lawsuit may ultimately lose, but that does not make it frivolous, and one way or the other, the Fourth Amendment is not, as Rabinowitz seems to think, the delusional fantasy of the "crank outposts of the libertarian movement."

Furthermore, if Rabinowitz refuses to see the reality of what she calls "the alleged [sic!] erosion of our liberties," then she has no standing to be taken seriously on the subject, whether by "crank libertarians" or by anybody else.

It is not up to journalists, or transit system bureaucrats, or a mayor, to decide whether a new, sweeping and heretofore constitutionally unsanctioned (not to mention patently ineffective) search program is "no big deal." Like it or not, it's up to the judges. And if you don't want them being "activist," then stop hiding behind the War on Terror and playing fast and loose with the Bill of Rights in the first place.

POST SCRIPT: Here's another example of Rabinowitz' "alleged" erosion of our Fourth Amendment rights that has resulted in yet more ACLU "caviling." Does Rabinowitz think the War on Terror justifies forced suspicionless breathalyzer tests of teenagers too? Or am I just being a "crank libertarian" again?